Court Issues Surveillance Smack-Down to Justice Department

New York--Agreeing with a brief submitted by EFF, a federal
judge forcefully rejected the government's request to track
the location of a mobile phone user without a warrant.

Strongly reaffirming an earlier decision, Federal Magistrate
James Orenstein in New York comprehensively smacked down
every argument made by the government in an extensive, fifty-
seven page opinion issued this week. Judge Orenstein decided,
as EFF has urged, that tracking cell phone users in real time
required a showing of probable cause that a crime was being
committed. Judge Orenstein's opinion was decisive, and
referred to government arguments variously as "unsupported,"
"misleading," "contrived," and a "Hail Mary."

"This is a true victory for privacy in the digital age, where
nearly any mobile communications device you use might be
converted into a tracking device," said EFF Staff Attorney
Kevin Bankston. "Combined with a similar decision this month
from a federal court in Texas, I think we're seeing a
trend--judges are starting to realize that when it comes to
surveillance issues, the DOJ has been pulling the wool over
their eyes for far too long."

Earlier this month, a magistrate judge in Texas, following
the lead of Orenstein's original decision, published his own
decision denying a government application for a cell phone
tracking order. That ruling, along with Judge Orenstein's
two decisions, revealed that the DOJ has routinely been
securing court orders for real-time cell phone tracking
without probable cause and without any law authorizing the
surveillance.

"The Justice Department's abuse of the law here is probably
just the tip of the iceberg," said EFF Staff Attorney Kurt
Opsahl. "The routine transformation of your mobile phone
into a tracking device, without any legal authority, raises
an obvious and very troubling question: what other new
surveillance powers has the government been creating out of
whole cloth and how long have they been getting away with
it?"

The government is expected to appeal both decisions and EFF
intends to participate as a friend of the court in each case.

Plan for Internet "Backdoors" Draws Coordinated Attack

The FCC's new tech mandate requiring Internet backdoors is
wrong in so many ways, we cannot even keep count. A few
choice ways, in lawyer-speak, is that it exceeds the FCC's
authority, is arbitrary, capricious, unsupported by the
evidence, and is contrary to law. EFF and six other groups
have now teamed up to stop it.

The coalition has petitioned an appeals court to review the
FCC ruling that would expand the Communications Assistance to
Law Enforcement Act (CALEA) to broadband ISPs and VoIP
providers, forcing them to build insecure backdoors into
their networks. Law enforcement says it needs the backdoors
because, they argue, it's just too hard for them to intercept
all the communications that they need. But that kind of easy
access will also endanger the privacy of innocent people,
stifle innovation, and risk the Internet as a forum for free
and open expression.

EFF has already argued against this expansion of CALEA in
several rounds of comments to the FCC, and we'll be there
every step of the way during the court battle.

Want to Take a Bite Out of the DMCA? Now's the Time

As part of the Digital Millennium Copyright Act (DMCA),
Congress instructed the U.S. Copyright Office to consider
every three years whether we need exemptions to the DMCA's
blanket ban on circumventing "technological protection
measures" (aka Digital Rights Management or DRM) used to lock
up copyrighted works. So if you want to make a legitimate
use of a piece of media, but have been turned back by DRM and
the DMCA, now is your chance to take your case to the
Copyright Office and try to make the world a happier and
safer place for the next three years. As two-time-
successful-exemption-requester Seth Finkelstein says: "The
lawsuit you prevent may be your own."

The Copyright Office is soliciting exemption proposals for
the next three-year period, 2006-2009. Proposals must be
submitted to the Copyright Office by no later than December
1, 2005.

Keep in mind that--as in the two previous rule-makings--you'll
have to overcome some obstacles to convince the Copyright
Office and Librarian of Congress to grant you an exemption.
These include:

1. The Copyright Office can recommend exemptions only to the
DMCA's ban on acts of circumvention, not to the ban on
trafficking in tools of circumvention. So if you are
interested in an exemption that would allow you to distribute
circumvention tools (like DVD back-up software), you're out
of luck.

2. You have to prove that your intended activity is not
otherwise an infringement of copyright law and specifically
identify the DRM technology that is getting in your way.

3. You have to identify a "class" of copyrighted works to
which your exemption would apply. The Copyright Office
requires that you do this by defining a subset of works of
authorship. You are not allowed to frame the class by
reference to particular non-infringing uses of those works,
or by attributes of the users. For example, the Copyright
Office has rejected past requests for exemptions for
"classroom uses" of DVDs, while granting exemptions for
computer programs protected by malfunctioning copy-protection
dongles.

These are just a few of the sometimes bewildering array of
limitations on the Copyright Office's willingness to
entertain exemption proposals. The best way to understand
the requirements is to read up on the links below. If, after
reviewing these, you think you might have something that
qualifies, EFF would like to hear from you. Please email
exemption class proposals to dmca2006-proposals @eff.org by
November 24.

First Annual P2P Litigation Summit, November 3

In September 2003, members of the Recording Industry
Association of America (RIAA) filed the first wave of
lawsuits against individual peer-to-peer (P2P) file-sharers.
Two years and 14,000 lawsuits later, both P2P file-sharing
and file-sharing litigation continue unabated, and members of
the Motion Picture Association of America (MPAA) are now
suing individual Internet users, as well. It's time to step
back and consider where this litigation has been, where it's
going, and whether there is a better way forward.

EFF is co-sponsoring the First Annual P2P Litigation Summit,
to be held on Thursday, November 3, 2005, at Northwestern
University School of Law in Chicago, Illinois.

The daylong conference brings together public and private
defense attorneys, clients, investigators, advocates, and
academics to discuss the latest developments in peer-to-peer
litigation. How do the RIAA and MPAA go about identifying
plaintiffs? What are the most effective legal strategies and
tactics? Is it better to settle immediately or fight it out
in the courts? How is this impacting the individuals sued?
What is the role of ISPs in this quagmire? Should Congress
step in and, if so, what legislation is needed? Are there
other ways to compensate authors for their works?

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